Roberts papers hint at his views on church-state issue

By Charlie Savage, Globe Staff | August 16, 2005

WASHINGTON -- The Supreme Court nominee Judge John G. Roberts Jr. denounced as ''indefensible" a 1985 Supreme Court ruling striking down a moment of silence in public schools, according to memos released yesterday from his years as a legal aide in the Reagan administration.

In a memo to his supervisor, then-White House counsel Fred Fielding, Roberts said he would support a constitutional amendment allowing silent reflection in the classroom, as some conservatives in Congress had proposed in response to the Supreme Court ruling.

Roberts wrote in the 1985 memo that ''the conclusion" in that Supreme Court case, that ''the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer' -- seems indefensible."

The files offered the first insight into how Roberts might rule on matters of church and state separation, should he be confirmed to the Supreme Court.

The memos showed that he had embraced the view of William H. Rehnquist, now the chief justice of the court, who has long argued that the court in recent decades has demanded a higher wall between church and state than the First Amendment requires.

The memo was among more than 5,000 pages of documents released yesterday. Some of the data also offered further insights into Roberts's views on such matters as equal pay for women in the workplace, the rights of terrorists, and even the merits of Michael Jackson and Prince.

The Supreme Court has been sharply divided on matters of church-and-state separation, often deciding the cases by 5-to-4 votes. Retiring Justice Sandra Day O'Connor, whom Roberts will replace if confirmed, has often been a key swing vote in these cases.

Rehnquist has argued that the Constitution does not demand absolute neutrality or even ''hostility" to religion. O'Connor has been more skeptical, particularly in cases such as school prayer and displays of the Ten Commandments on government property. The documents released yesterday suggest that Roberts's view may be closer to Rehnquist's than to O'Connor's.

In his files, Roberts kept a copy of Rehnquist's dissent from the 1985 ''moment-of-silence" case, espousing the future chief justice's oft-stated view that the Constitution only prevents Congress from declaring an official national religion.

On affirmative action, a Feb. 20, 1984, memo Roberts wrote offered further evidence that he strongly supports race- and gender-blind policies.

The 1984 memo shows him similarly critical of a court ruling that intended to address a pay gap between men and women.

In 1983, a federal judge had ruled in favor of a group of women who said they had been paid less than men for work of equal worth. The judge based his ruling on a study that indicated that traditionally female jobs, such as secretaries, and traditionally male jobs, such as truck drivers, each produced the same ''worth" of work product, but the secretaries were paid less.

Three Republican congresswomen at the time -- Olympia Snowe of Maine, Claudine Schneider of Rhode Island, and Nancy Johnson of Connecticut -- wrote to the White House, urging the Reagan administration not to suppport the company's appeal of the judge's ruling.

Roberts's memo strongly disagreed, dismissing their argument of a ''comparable worth" disparity between men and women.

The legislators' letter, Roberts wrote, pointed out that women still made 60 cents for every dollar for men, while ''ignoring the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the workforce for significant periods of time, etc."

He added: ''I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be, 'from each according to his ability, to each according to her gender.' "

Snowe is now a senator and Johnson is still a representative; Schneider is out of office.

On matters of terrorism and the laws of war, in May 1985 Roberts sided with Douglas Feith, a Reagan aide who later rose to become undersecretary of defense for policy in George W. Bush's first term.

Both argued that the United States should not ratify a proposed amendment to the Geneva Convention granting insurgent groups such as the Palestine Liberation Organization the same status as official armies.

The proposed amendments ''would treat many terrorist organizations as if they were countries engaged in war, legitimizing their activities and offering them protections and courtesies that should not be extended to common criminals," Roberts wrote.

Last month, just before President Bush nominated him, Roberts showed that he still is skeptical about applying the laws of war to terrorists.

As an appeals court judge, he upheld the Bush administration's plan to try Guantanamo Bay detainees before a military commission, overturning a lower-court ruling that such tribunals violated the Geneva Conventions.

Not all the files addressed such serious matters. On Sept. 21, 1984, Roberts wrote against a proposal by White House staff members that President Reagan send a letter to Michael Jackson to thank him for scheduling a concert in Washington and giving tickets to needy youngsters.

''I hate to sound like one of Mr. Jackson's records, constantly repeating the same refrain, but I recommend that we do not approve this letter," wrote Roberts, who was 29 at the time. He argued that ''whatever its status as a cultural phenemon," the Jackson concert tour would reap large profits and would need no expression of thanks from the president for such ''enlightened self-interest."

Moreover, he added, other performers might expect the same:"In today's [Washington] Post there were already reports that some youngsters were turning away from Mr. Jackson in favor of a newcomer who goes by the name 'Prince,' and is apparently planning a Washington concert. Will he receive a presidential letter? How will we decide which performers do and which do not?"

One file released yesterday offered an epilogue to last week's furor over an anti-Roberts television ad by the National Abortion Rights Action League. The ad, which NARAL pulled, implied that Roberts had filed briefs that supported the actions of an abortion clinic bomber.

In fact, Roberts, then deputy solicitor general in the George H. W. Bush administration, filed briefs arguing that abortion clinics couldn't use a Reconstruction-era antidiscrimination law to stop protesters blockading their offices. Moreover, the NARAL ad used footage from a bombing in 1998 -- seven years after Roberts's briefs.

On Feb. 10, 1986, Roberts drafted a letter to a congressman who was concerned that Reagan might pardon convicted abortion-clinic bombers. Roberts's draft language said Reagan would do no such thing.

''The President unequivocally condemns such acts of violence and believes that those responsible should be prosecuted to the fullest extent of the law," Roberts wrote. ''No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals."